State Consumer Disputes Redressal Commission
Sri Somnath Chakraborty vs Sri Prabir Ranjan Sen on 12 July, 2016
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/1049/2014 (Arisen out of Order Dated 29/08/2014 in Case No. CC/504/2013 of District South 24 Parganas) 1. Sri Somnath Chakraborty S/o Late Durga Das Chakraborty, 3/1, Kedar Dutta Lane, P.O. Beadon Street, Kolkata -700 060. ...........Appellant(s) Versus 1. Sri Prabir Ranjan Sen S/o Hiralal Sen, 48/2Q, B.T. Road, P.S. Cossipore, Kolkata -700 050. 2. Sri Dipak Kumar Sen S/o Hiralal Sen, 48/2Q, B.T. Road, P.S. Cossipore, Kolkata -700 050. 3. Sri Rajkumar Mitra S/o Sri Nirmal Kumar Mitra, 6, Rathindra Banerjee Lane, P.S. Kasba, Kolkata -700 031. 4. Sri Ashoke Kumar Sengupta S/o Sri Dijendra Nath Sengupta, 6, Rathindra Banerjee Lane, P.S. Kasba, Kolkata -700 031. 5. M/s Pradip Enerprises 47A, B.T. Road, P.S. Cossipore, Kolkata - 700 050. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. MRIDULA ROY MEMBER For the Appellant: Mr. Rajendra P. Roy Chowdhury Ms. Banasree Nandy, Advocate For the Respondent: none appears ORDER Date of filing - 15.09.2014 Date of hearing - 30.06.2016 Date of Judgement -12.07.2016. PER HON'BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER JUDGEMENT
Challenge in this appeal u/s 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is to the judgement and final order dated 29.08.2014 made by the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas at Alipore (for short, Ld. District Forum) in Consumer Complaint no. 504/2013 whereby the complaint initiated by the Complainant Shri Somnath Chakraborty u/s 12 of the Act was dismissed on contest against the OP no.2 and ex-parte against the rest without cost with a liberty to the Complainant to take proper steps to get relief in the appropriate jurisdiction, if not otherwise barred.
The Appellant herein being Complainant lodged the complaint alleging that by two Agreements dated 18.11.1987, he has entered into Agreements with the Respondents to purchase of a flat being Flat no.05 in the 2nd Floor lying and situated at Premises no.9, Ramkrishna Lane, P.S.- Kasba, Kolkata - 700031, Dist - South 24 Parganas at a consideration of Rs.1,98,000/-. The Appellant has paid the entire consideration amount and on 10.10.1991, the Respondents hand over the possession of the flat in favour of him. The Appellant has stated that being an employee of a Bank, he has obtained loan from the Bank in order to purchase the flat. After taking possession, the Appellant inducted one Ajay Kumar Biswas as a tenant in the said premises on a monthly rental basis and the said Ajay Kumrar Biswas still in possession of the same. The Appellant has submitted that after his retirement on 30.06.2010, he has made several requests to the OPs for executing and registering the Deed of Conveyance with regard to flat in question but all the requests and persuasions went in vain. Hence, the Appellant approached the Ld. District Forum with this complaint for prayer of certain reliefs, Viz. - a) directing the OPs to execute and register the Deed of Conveyance; b) a compensation of Rs.2,00,000/- for harassment and mental agony; c) cost of the proceedings etc. The Respondent no.2 being OP no.2 by filing a written version has refuted the material allegations contending inter alia that the Complainant after getting possession of the flat inducted one Ajay Kumar Biswas, a tenant on monthly rental basis and started to earn from the flat in question but did not make payment balance amount of Rs.18,000/- in favour of them as construction costs.
After assessing the evidence of the parties, the Ld. District Forum has observed that the Complaint is not hit by the provision of Section 24A of 'the Act' but the Complainant does not fall within the category of 'Consumer' as he let out the flat to earn money pertains to commercial purpose.
We have scrutinised the materials on record and considered the submission advanced by the Ld. Advocate appearing for the Appellant. None appears for the Respondents to contest and as such under compulsion, we proceeded to dispose of the appeal in absence of the Respondents.
Having heard Mr. Rajendra Prasad Roy Chowdhury, Ld. Advocate for the Appellant and on going through the materials on record, we find that the Appellant was an employee of United Industrial Bank, which was later merged with the Allahabad Bank. On 30.06.2010, the Appellant retired from service as an Officer of Allahabad Bank, Bowbazar Branch. On 18.11.1987, the Appellant has entered into two Agreements with the Respondents and by one Agreement, the Respondents agreed to sell one self-contained flat being flat no.5 at Premises no.9, Ramkrishna Lane, P.S.- Kasba, Kolkata - 700031, Dist - South 24 Parganas and by other Agreement, the OPs jointly agreed that the Respondent no.6 would, at the cost of the Appellant built, erect and complete the construction of the property along with proposed construction at the Premises and shall hand over the possession of the same to the Appellant. It remains undisputed that the total consideration amount of the flat was settled at Rs.1,98,000/-. The receipts available with the record indicates that on diverse dates in between 23.09.1987 and 15.09.1988, the Appellant paid almost entire consideration amount and balance Rs.10,000/- paid by him on 25.04.1992. It is also evident that the OPs handed over the possession of the flat in question in favour of the Appellant on 10.10.1991 after receiving the entire consideration amount.
It is well settled Law that after accepting the consideration amount, it is statutory obligation on the part of the Developer to hand over the property in question in favour of the purchaser and unless and until a Sale Deed is executed, cause of action is a continuous one. Therefore, a long delay of 22 years in filing the petition of complaint before the Ld. District Forum by itself would not be fatal to the Appellant's case, if it is found that the situation was not convenient in getting the Deed executed earlier in favour of him. In this regard, the observation of the Ld. District Forum is quite justified and we are agree to the same.
Be that as it may, the Appellant being an employee of the Bank obtained loan from his employer in order to purchase the flat in question. The Appellant has paid the entire consideration amount after receipt of loan from the Bank. On 10.10.1991, the Respondents handed over the flat in favour of the Appellant. However, the Appellant without using the same for his residential purpose, let out the same to one Shri Ajay Kumar Biswas on a monthly rental basis of Rs.1,800/-. The said Ajay Kumar Biswas is still occupying the flat. In Paragaph-14 of his Evidence on Affidavit the Appellant has stated - "........ for augmentation of my income let out the said property to Ajay Kumar Biswas, since deceased on monthly rental basis and as still holding possession of the said property through such tenant".
The Ld. District Forum has observed that the said letting out of the flat by the Appellant to a tenant was certainly to earn money and as such the Complaint would be excluded from the purview of the Act.
Ld. Advocate for the Appellant has submitted that when his client has paid the entire consideration amount and is in possession of the flat in question, the Respondents are duty bound to execute the Sale Deed and the Ld. District Forum has proceeded in a wrong way and decided the case against a lawful buyer. In support of his submission, Ld. Advocate for the Appellant has placed reliance to a decision of the Supreme Court of India dated 17.01.2003 in Appeal (Civil) 9927 of 1996 (State of Karnataka - vs. - Vishawabharathi House Building Co-operative Society & Ors.) and also a decision of Calcutta High Court dated 20.01.2014 in C.O. no. 3020 of 2012 (L&T Finance Ltd. - Vs. - Anup Kumar Bera & Anr.). Relying upon the decision of the Hon'ble Apex Court in State of Karnataka's case (Supra), the Calcutta High Court in L& T Finance Ltd.'s case (Supra) has observed that pendency of a Civil Suit does not create a bar to a Consumer Fora to entertain a petition of complaint as an additional remedy if it is otherwise not barred. The referred decisions have no manner of application in our case. It is true that the Appellant being Plaintiff instituted a suit for eviction against the tenant inducted by him being T.S. No.81/2001 but the said suit was dismissed as the Appellant could not prove his ownership by producing the Deed of Conveyance.
For proper understanding of the matter, it would worthwhile to reproduce the provision of Section 2(1)(d) of the Act which runs as follows -
"Consumer" means any person who -
buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;
Explanation - For the purposes of the clause, "Commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment".
Therefore, Section 2(1)(d) of the Act provides that the 'Consumer' is a person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised or avails of any services for a consideration which has been paid or promised or partly paid and par partly promised but it does not include a person who avails of services for any commercial purposes. In M/s. Harsolia Motors Case reported in I (2005) CPJ 27 the National Consumer Commission has observed that if the goods are purchased for resale or for commercial purpose, then such Consumer would be excluded from the coverage of the Act.
The Appellant purchased the flat after obtaining the loan from his employer at the lowest rate of interest and after payment of consideration money on the basis of such loan, he took possession of the flat on 10.10.1991 but without using the said flat for his residential purpose, let out the same to a tenant with an intention to earn money. The Appellant himself has admitted that he inducted the tenant in the flat in question for augmentation of his income and the intention behind the same is to earn profit and as such the Appellant cannot be categorised as Consumer in view of the provisions of the Act and the Authority as mentioned above.
After giving due consideration to the submission of the Ld. advocate for the Appellant, we have no other option but to agree with the view of the Ld. District Forum that the Appellant does not fall within the category of 'Consumer' as defined in Section 2(1)(d) of the Act. Accordingly, the appeal fails.
Consequently, appeal is dismissed ex-parte without any order as to costs.
The Judgement and Final Order passed by the Ld. District Forum dated 29.08.2014 in CC/504/2013 is hereby affirmed.
The Registrar of this Commission is directed to send the copy of this order to the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas at Alipore (now at Baruipur) for information. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. MRIDULA ROY] MEMBER